Garris v. Robeison, 2920
| Decision Date | 26 October 1962 |
| Docket Number | No. 2920,2920 |
| Citation | 146 So.2d 388 |
| Parties | June B. GARRIS, as Executrix of the last Will and Testament of Earl Blodgett, Deceased, Appellant, v. Joe ROBEISON, Appellee. |
| Court | Florida District Court of Appeals |
Gedney, Johnston & Lilienthal, West Palm Beach, for appellant.
Salisbury, Kaywell & Salisbury, Palm Beach, and Langbein, Burdick & Silvian, West Palm Beach, for appellee.
This is a motor vehicle negligence case involving a traffic-light intersection collision between a tractor-trailer driven by the plaintiff-appellee, Joe Robeison, and an automobile owned and driven by the defendant-appellant's decedent, Earl Blodgett. Both Blodgett and his sole passenger were instantly killed. The defendant filed pleas of general and contributory negligence. Plaintiff filed a motion to strike the plea of contributory negligence and a motion for summary judgment, submitting depositions and photographs, none of which were controverted by the defendant. The court held that all of the evidence concerning the happening of the accident which could be produced at the trial was contained in the file; that it appeared to the court that in order for a jury to find plaintiff guilty of contributory negligence, they would have to delve into the realm of speculation and guess work; and that since the burden of proof on the plea of contributory negligence was upon the defendant, the court would grant the motion to strike the plea of contributory negligence and deny plaintiff's motion for summary judgment.
At the trial, the plaintiff presented his evidence and rested, and the defendant announced that she had no evidence to offer, whereupon the plaintiff moved for a directed verdict on the question of liability. The court granted the motion, and subsequently the jury returned its verdict awarding the plaintiff damages. After entry of final judgment, the defendant appeals, contending that the court erred in striking her plea of contributory negligence and in directing a verdict for the plaintiff on the question of liability.
On the question pertaining to the court's striking the defendant's plea of contributory negligence, the defendant contends that there is nothing in the statutes or rules which permits the striking of a plea of contributory negligence where the plea is property framed and states a good defense, citing Florida Rule of Civil Procedure 1.11(f), 30 F.S.A. We conclude, however, that even if we concede the accuracy of this statement, nevertheless, the ultimate effect of the court's action was to eliminate an affirmative defense upon which there was no material issue of fact, which it could have done upon the motion for summary judgment. The procedure employed by the court was unorthodox, but, at most, only a harmlessly erroneous procedural method of arriving at a proper result. Our review of the propriety of the directed verdict will further demonstrate the lack of harmful error.
The defendant's contention that the court erred in directing a verdict in favor of the plaintiff on the question of liability requires a review of the evidence.
The plaintiff was the driver of the truck and the only surviving eye-witness to the collision. He testified that he was proceeding north on State Road 7, as he approached the intersection with State Road 80, at approximately 6:45 P.M., on March 7, 1960, and that it was 'good dusk dark.' He also stated that he was well acquainted with the intersection and that he first observed the traffic light from a distance of approximately 200 feet. The light was then red. Upon observing the red light, the defendant put his foot on the brakes and slowed down. When 75 to 100 feet from the light, he was traveling at a speed between 30 and 35 miles per hour, and he down-shifted into third gear. At one time he testified that the light changed to green when he was about 100 feet from the intersection. At another time, he testified that the light changed green when he was 30 to 35 feet from the intersection. And, at still another time, he testified that he was 75 to 80 feet from the intersection when the light changed green. He had his lights on. He was uncertain as to whether the light changed from red to caution to green, or whether it changed from red to green. The weather was clear and the roads were dry. He looked both ways when approaching the intersection, but did not see any other vehicles, except a car-carrying truck which was ahead of him, stopped for the red light. When the light changed to green, this vehicle made a left turn at the intersection. When the green traffic light came on, the plaintiff began to increase his speed and proceeded on into the intersection with the green light. He did not see the other automobile, but stated that when under the light, he saw...
To continue reading
Request your trial
-
National Car Rental System, Inc. v. Bostic
...a verdict in favor of the movant. Whetzel v. Metropolitan Life Insurance Company, 266 So.2d 89 (Fla. 4th DCA 1972); Garris v. Robeison, 146 So.2d 388 (Fla. 2d DCA 1962). A review of the properly admitted and unrebutted testimony resolves, beyond any question of a doubt, the issues of liabil......
-
Seibels, Bruce & Co. v. Giddings
...negligence, the matter should be submitted to a jury. Redwing Carriers, Inc. v. Helwig, Fla.App.1959, 108 So.2d 620; Garris v. Robeison, Fla.App.1962, 146 So.2d 388; Musachia v. Rosman, supra; Bess Ambulance, Inc. v. Boll, Fla.App.1968, 208 So.2d 308. Under the facts as above set forth, we ......
-
Foulk v. Perkins, 5248
...to show negligence on the part of the plaintiff to make the question of contributory negligence one for the jury. Garris v. Robeison, Fla.App.1962, 146 So.2d 388; Redwing Carriers, Inc. v. Helwig, Fla.App.1959, 108 So.2d 620. However, in the case before us we find there was no evidence from......
-
Behm v. Division of Administration, State Dept. of Transp.
...that the Jacksonville view and result is unsupportable. We would point out that the court in Jacksonville cited to Garris v. Robeison, 146 So.2d 388 (2d D.C.A.Fla.1962) in support of its contention. Garris, however, concerns a personal injury action, in which a directed verdict was had beca......